E-reserves in California (CHE)

[Liblicense-L Listowner <liblicen@pantheon.yale.edu>]

>From today's Online Chronicle, of interest.

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Legal Battle Brews Over Texts on Electronic Reserve at U. of California 
Libraries
By SCOTT CARLSON

Publishers are objecting to an electronic reserve system at the University
of California in which libraries scan portions of books and journals and
make them available free online to students.

In recent months, lawyers for the Association of American Publishers have
sent letters to the university that object to the use of electronic
reserves on the San Diego campus. The publishers say that the use of
electronic reserves is too extensive, violating the "fair use" doctrine of
copyright law and depriving them of sales.

University officials counter that the electronic reserves at San Diego are
well within the bounds of fair use. They worry that the letters portend a
lawsuit.

"They clearly had a lawsuit in mind when they started contacting our
office," said Mary MacDonald, a lawyer for the university system. "Their
position was that the 'evidence' showed that we weren't following fair-use
guidelines, that this was a national issue, and that the set of facts gave
them a good platform from which to take legal action."

Ms. MacDonald said she sent a "comprehensive response" to the association
in February, laying out how the university's electronic reserves respected
fair use. She said she had not heard from the publishers since then.

Allan R. Adler, vice president for legal and governmental affairs at the
publishing group, said the university's responses "haven't been very
satisfactory."

[SNIP]

For the publishers, there is a great distinction between materials that 
constitute "reserves" and those that compose a "course pack." In the 
1990s, publishers won a series of lawsuits against commercial companies, 
such as Kinkos, that were copying and selling materials for course packs. 
Courts determined that the publishers, as the copyright holders, should be 
paid for the materials.

Mr. Adler said he objects even to the notion of electronic reserves. This 
is not like the old days, he said, when one copy of a reading was at the 
library, and students had to hike there to read it.

"We are talking about putting materials in digital form onto a library 
server, and then allowing students to have access to it as they choose, 
including in many instances the ability to download and print copies," he 
said. "That's not the same thing as traditional reserves."

[SNIP]

Jonathan Franklin, associate law librarian at the University of Washington
and a fair-use scholar, said that because the doctrine had not been well
defined, some institutions have let fear of litigation determine how, or
whether, they set up electronic reserves.

"It's very vague as to what people can do, and institutions are so
risk-averse that they license things they wouldn't normally have to
license," he said. Still, he said, a legal battle might help clarify
matters. "I would look forward to a resolution that was public," he said,
"and that set out guidelines and standards under which universities could
successfully offer electronic course reserves."

copyright 2005 Chronicle of Higher Education